This
matter comes before the Court on the motion of pro
se petitioner Wallace M. Stokes, Jr.
(“Petitioner”) to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255 [Doc. 387,
“Petition”].[1] Petitioner filed a Memorandum [Doc.
388] with his Petition and attached his Affidavit [Doc.
388-1] to his Memorandum. The Government has responded [Doc.
399] in opposition. The Government has also provided the
Affidavit [Doc. 399-1] of Petitioner's counsel Attorney
Russell L. Leonard. The parties appeared for an evidentiary
hearing on one of the Petitioner's allegations on
September 25, 2017. Assistant Federal Defender Gianna Maio
represented the Petitioner, who was also present. Assistant
United States Attorney Michael D. Porter represented the
Government. The Court finds the materials submitted, the
evidence and arguments offered at the evidentiary hearing,
and the complete record of the underlying criminal case
conclusively demonstrate that the Petitioner is not entitled
to relief on the claims asserted in his Petition.
Accordingly, the Petitioner's motion is
DENIED for the reasons stated herein.

I.
FACTUAL AND PROCEDURAL BACKGROUND

From
January 2009 to October 2012, Petitioner conspired with
others to manufacture and distribute methamphetamine in
Monroe County, Tennessee. [Doc. 130, Plea Agreement at
¶3(a)] On July 10, 2013, Petitioner entered a plea of
guilty, pursuant to a written plea agreement [Doc. 130], to
conspiracy to manufacture and distribute methamphetamine
before United States Magistrate Judge Susan K. Lee [Docs. 208
&amp. 215]. On July 31, 2013, the undersigned accepted [Doc.
232] the Defendant's guilty plea. On November 7, 2013,
the Court sentenced Stokes to three hundred (300) months of
imprisonment [Doc. 341]. The Judgment of conviction [Doc.
343] was entered on November 19, 2013. Petitioner did not
file a notice of direct appeal. Petitioner was represented by
attorney Russell L. Leonard (“Counsel”) at all
stages of the proceedings. Petitioner now contends that he
received the ineffective assistance of counsel [Doc. 387].

Petitioner's
rearraingment hearing was held before Judge Lee on July 10,
2013. When Petitioner was asked if anyone had threatened him
into entering the plea agreement, he hesitated [Doc. 254');">254');">254');">254');">254');">254');">254');">254');">254');">254');">254');">254');">254');">254');">254');">254].
This led to a lengthy discussion of Petitioner's belief
that he had been threatened with the death penalty in order
to give his incriminating pre-indictment
statements.[2] Judge Lee then recessed the hearing and
allowed the Petitioner to consult with Counsel about the pre-
indictment statements and whether he wanted to go forward
with his change of plea [Id.]. After this
consultation, Counsel informed the Court, out of the presence
of Petitioner, that the Petitioner “understands what
transpired before the indictment, before his arrest, whether
he feels he was duped or not, that there were choices that he
could have made then that he didn't make.”
[Id.] Counsel confirmed that, if he had thought
there was a basis for filing a motion to suppress the
Petitioner's statements, he would have done so. Judge Lee
reiterated she was willing to continue the hearing for a week
if needed. Counsel declined, stating he had already discussed
the case with his client “as thoroughly as he had ever
discussed a case with a client.” [Id.] When
Petitioner returned to the courtroom, Counsel stated he and
the Petitioner had previously discussed the pre-indictment
statements, he had advised the Petitioner that there was no
basis for challenging those statements, and the Petitioner
had decided to enter into a plea agreement instead.
Petitioner agreed he was guilty and went forward with the
change of plea.

At
Petitioner's sentencing hearing on November 7, 2013,
Counsel argued for a downward departure based on the
Government “promising” or “assuring”
Petitioner he would receive a lighter punishment for his
cooperation [Doc. 397');">397');">397');">397]. The Government denied giving such
assurances. To resolve the dispute, Agent Melton testified.
Agent Melton denied making any such promises to Petitioner
and testified he told Petitioner only that he would
“pass his statements along to the prosecutor's
office to see what his involvement was or was not in the
conspiracy.” [Id.] Counsel cross-examined
Agent Melton, during which Petitioner called Agent Melton a
liar, prompting a lecture from the Court [Id.]. The
Court found no such promises were made, denied
Petitioner's motion for a downward variance, and
sentenced Petitioner to 300 months' imprisonment.

In
January 2014, Petitioner procured a copy of the docket sheet
in his case, which showed no notice of appeal had been filed.
In early March 2014, Petitioner instructed his sister to
request materials in Petitioner's case file from Counsel
for the purposes of Petitioner challenging his sentence [Doc.
376-1]. Counsel's office sent the requested materials to
Petitioner's sister. Petitioner then wrote Counsel
another letter on March 19, 2014, requesting additional
materials [Doc. 374]. Petitioner also asked in this letter
why Counsel had not filed a notice of appeal as Petitioner
had directed in his letter to Counsel two days after the
sentencing hearing.[3] Counsel responded with a letter on April
3, 2014 explaining he had not received a letter from
Petitioner instructing Counsel to file an appeal [Doc.
376-2].

Petitioner
wrote Counsel again on April 8, 2014, alerting him that he
(Petitioner) had filed a § 2255 motion because Counsel
had not filed a notice of appeal as instructed [Doc. 399-1].
Counsel responded on April 15, 2014, reiterating that he had
never received a letter from Petitioner asking him to file an
appeal [Doc. 376-3]. Counsel further noted “[h]ad [he]
received such a letter, it is a simple procedure to file a
notice of appeal, ” and would have done so
[Id.].

On
September 25, 2017, the undersigned held an evidentiary
hearing with regard to the Petitioner's contention that
he received the ineffective assistance of counsel because Mr.
Leonard failed to consult with him about filing a direct
appeal and failed to file a direct appeal when expressly
asked to do so. At the hearing, Counsel testified he
discussed with Petitioner before his rearraignment hearing
the pros and cons of pleading guilty and the rights
Petitioner would give up by so pleading. Counsel did not meet
with Petitioner after his sentencing hearing. Counsel noted,
however, that it was his practice to meet with clients before
sentencing to explain the procedure and post-sentencing
options. Counsel testified he did meet with Petitioner before
his sentencing hearing, but could not recall specifically
whether he consulted with Petitioner about an appeal during
this meeting.[4]

Counsel
further testified that he interacted with Petitioner neither
immediately following the sentencing hearing nor in the weeks
that followed. He sent Petitioner no written correspondence
and received no mail or phone calls from the Petitioner.
Counsel testified the first time Petitioner contacted him
after the sentencing hearing was through his March 19, 2014
letter requesting documents from his case file and asking why
Counsel had not filed a notice of appeal. Counsel
specifically denied receiving a letter from Petitioner two
days after the sentencing hearing instructing him to file an
appeal.

II.
STANDARD OF REVIEW

Section
2255 of Title 28 of the United States Code permits a prisoner
in custody under sentence of a federal court to move the
court that imposed the sentence to vacate, correct, or set
aside that sentence, on the grounds:

the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack . . . .

To
obtain relief pursuant to 28 U.S.C. § 2255, a petitioner
must demonstrate “(1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory
limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (quoting Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He
“must clear a significantly higher hurdle than would
exist on direct appeal” and establish a
“fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

In his
§ 2255 motion, the Petitioner contends that he received
the ineffective assistance of counsel. The Sixth Amendment
provides, in pertinent part, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. A defendant has a Sixth Amendment right not just
to counsel, but to “reasonably effective
assistance” of counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984). A petitioner
alleging ineffective assistance of counsel must satisfy the
two-part test set forth in Strickland v. Washington,
466 U.S. at 687; see also, Huff v. United States,
734 F.3d 600, 606 (6th Cir. 2013). First, the petitioner must
establish, by identifying specific acts or omissions, that
counsel's performance was deficient and that counsel did
not provide “reasonably effective assistance, ”
Id., as measured by “prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380
(2005). Counsel is presumed to have provided effective
assistance, and petitioner bears the burden of showing
otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17
(6th Cir. 2003); see also Strickland, 466 U.S. at
689 (a reviewing court “must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that . . . the
challenged action might be considered sound . . .
strategy”) (internal citation omitted).

Second,
the petitioner must demonstrate “a reasonable
probability that, but for [counsel's acts or omissions],
the result of the proceedings would have been
different.” Strickland, 466 U.S. at 694.
“An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment.” Id. at 691; see also Smith v.
Robbins, 528 U.S. 259, 285-86 (2000). If a petitioner
fails to prove that he sustained prejudice, the Court need
not decide whether counsel's performance was deficient.
See United States v. Hynes, 467 F.3d 951, 970 (6th
Cir. 2006) (holding that alleged “flaws” in trial
counsel's representation did not warrant new trial where
the claims, even if true, did not demonstrate that the jury
would have reached a different conclusion). The
Strickland Court emphasized both prongs must be
established in order to meet the claimant's burden, and
if either prong is not satisfied the claim must be rejected,
stating:

Although we have discussed the performance component of an
ineffectiveness claim prior to the prejudice component, there
is no reason for a court deciding an ineffective assistance
claim to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes
an insufficient showing on one . . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that
course should be followed. Courts should strive to ensure
...

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